EURO LIT INSIGHTS

Shareholder Rule Gets Short Shrift

by Kimberley Smith and Jannika Glendon | Jan 7, 2025 | United Kingdom

Derived from 19th century case law, the general school of thought has been that a company cannot assert privilege against its own shareholder, save in relation to documents that came into existence for the purpose of hostile litigation against that shareholder (the so-called “Shareholder Rule”).

In a judgment dated 27 November 2024, Mr Justice Picken (sitting in the English High Court) delivered a landmark ruling decisively rejecting the ‘Shareholder Rule’ on all bases (the Judgment). The Judgment represents a long awaited, significant, departure from what was considered to be a long-standing legal principle and seeks to align the concept of privilege under English law with contemporary corporate realities. The Judgment also clarifies the concept and scope of Joint Interest Privilege as a mater of English law.

Background

The Judgment was given in relation to ongoing group litigation brought by Aabar Holdings S.À.R.L (Aabar) and other shareholders against Glencore PLC (Glencore) involving claims under s. 90 and 90A of the Financial Services and Markets Act 2000 in relation to alleged (but in some cases admitted) misconduct by companies within the Glencore group. Within the context of the proceedings, a dispute arose as to whether Glencore would be entitled to assert

Supreme Court Decision in Kireeva v Bedzhamov – Reaffirming the Immovables Rule

by Sunay Radia, Harry Denlegh-Maxwell and Louis Gregory | Dec 12, 2024 | Court Judgment, United Kingdom

Supreme Court Decision in Kireeva v Bedzhamov – Reaffirming the Immovables Rule

The recent Supreme Court decision in Kireeva v Bedzhamov [2024] UKSC 39 (the Judgment) has upheld the Court of Appeal’s decision not to assist a Russian receiver in foreign bankruptcy proceedings. The decision confirmed the long-established position that there is no common law exception to the Immovables Rule (the Rule) (i.e. that land situated in England and Wales is governed exclusively by English law, thereby limiting the jurisdiction of foreign courts over such property), and clarified the limitations of “modified universalism”.

This Supreme Court judgment will be of particular interest in cross-border insolvency proceedings, where attention must be paid to assets outside the jurisdiction and how they can be realised. Similarly, it will be of interest to creditors, who must carefully consider in which jurisdiction they ought to apply for a bankruptcy order.

Background

The case arose from the purported frauds of Mr. Bedzhamov (the Respondent), following two successful claims and bankruptcy petitions in Russia.

After various failed attempts at overturning the decisions in Russia, the Arbitrazh Court declared the Respondent bankrupt on 02 July 2018 and appointed Ms. Kireeva (the Appellant) as his receiver. By this time,

Italian Anticorruption Authority Publishes Draft Guidelines on Whistleblowing Internal Reporting Channels

by Fabio Cozzi and Giuseppe Tinello | Dec 5, 2024 | Legislative Update, Italy

On November 7, 2024, the Italian Anticorruption Authority (ANAC or the Authority) made available for a preliminary consultation the “Draft Guidelines on Whistleblowing Internal Reporting Channels” (the Draft Guidelines), aimed at providing additional clarifications as to the appropriate management of internal reporting channels under Decree No. 24/2023 (the Whistleblowing Decree). ANAC is now collecting comments and remarks from relevant stakeholders (to be provided by 9 December 2024), before finalizing and amending (where necessary) the Draft Guidelines.

The new Draft Guidelines are intended to update the guidelines originally published on July 12, 2023 with reference to external reporting channels. The main updates are as follows:

Detailed guidance is provided on the role attributed to trade unions and how to get them involved in the activating procedure of the new internal reporting channels, as requested by the Whistleblowing Decree. In particular, ANAC specifies that the involvement of trade unions is “purely informative” in nature, aimed at acquiring any comments on the implementation of the internal channel. The deadline given to trade unions to submit their comments is not peremptory in nature and the opinion expressed by the trade unions is not binding. ANAC also clarified that in companies where there are

The Potentially Damaging Effects of Non-Compliance with PD57AC

by Harry Denlegh-Maxwell and Daisy Daynes | Oct 22, 2024 | Investment, Court Judgment, Regulatory/Compliance, United Kingdom

On 14 August 2024, in the case of Timothy Fulstow and Robert Woods v Jeremy Francis [2024] EWHC 2122 (ChD) (Fulstow), the High Court dismissed a high value investment claim, partly because the claimants’ witness statements were in clear contravention of Practice Direction 57AC (PD 57AC).

This case acts as a cautionary tale for legal representatives and their clients. It not only highlights the importance of complying with the requirements of PD 57AC when preparing witness statements, but also draws attention to the personal, albeit professional, obligations of lawyers when signing declarations of compliance with PD 57AC.

In his judgment, Deputy High Court Judge David Stone made a point of criticising the solicitor representing the claimants for submitting a ‘false’ declaration that the witness statements were compliant with PD 57AC, when they were clearly not. He went as far as questioning the suitability of the representative, suggesting that “any solicitor properly practising in this court ought to have known [that the witness statements did not comply with PD 57AC]”.

The Key Provisions of PD 57AC

PD57AC was introduced in 2021 to prevent the perceived “over-lawyering” of witness statements, and to address long-held concerns that witness statements were often too

Court of Appeal Rules in Favour of the FCA in Significant Redress Decision for all Regulated Firms

by Harry Denlegh-Maxwell, William Merry and Rebecca Geers | Oct 22, 2024 | Court Judgment, Regulatory/Compliance, Private Equity, United Kingdom

Introduction

In a landmark ruling, the Court of Appeal recently confirmed that the FCA can impose a redress requirement on an FCA-regulated firm under section 55L Financial Services and Markets Act 2000 (FSMA) without needing to meet the pre-conditions for a statutory market-wide redress scheme under section 404F FSMA.

Background

BlueCrest Capital Management UK LLP (BlueCrest) was the subject of an FCA investigation in 2021. The conclusion of this investigation found that the hedge fund breached Principle 8 of the FCA’s Principles for Businesses by failing to properly mitigate conflicts of interests when acting as an investment manager. BlueCrest was accused of making decisions that ultimately benefited an internal fund, whose stakeholders included senior partners and key employees, to the detriment of an external fund with external investors. As recompense, the FCA ordered a £40,806,700 penalty against BlueCrest and required it to redress an estimated US$700 million to its investors under section 55L FSMA.

BlueCrest challenged this decision and took its case to the Upper Tribunal. BlueCrest argued that the FCA was not permitted to impose a redress on a single firm under section 55L FSMA without taking into account the four conditions under section 404F(7) FSMA, being loss, causation,

Shareholder Rule Gets Short Shrift

Supreme Court Decision in Kireeva v Bedzhamov – Reaffirming the Immovables Rule

Italian Anticorruption Authority Publishes Draft Guidelines on Whistleblowing Internal Reporting Channels

The Potentially Damaging Effects of Non-Compliance with PD57AC

Court of Appeal Rules in Favour of the FCA in Significant Redress Decision for all Regulated Firms

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